use of “shall” is mandatory when it operates to confer a right and establish a duty
How later courts described this case
- use of “shall” is mandatory when it operates to confer a right and establish a duty
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ESTATE OF RAYMOND L. BELL, by
and through Channa Copeland, his No. 86505-6-I
Personal Representative; and
Northstar Case Management, his
Guardian and Conservator, DIVISION ONE
Petitioner,
UNPUBLISHED OPINION
v.
STATE OF WASHINGTON,
DEPARTMENT of SOCIAL and
HEALTH SERVICES; ADULT
PROTECTIVE SERVICES and DOES
1-5, individuals and entities,
Respondents.
CHUNG, J. — Raymond Bell was a vulnerable adult with dementia and other
documented health issues. 1 Between February 2020 and July 2021, the Department of
Social and Health Services (the Department) received nine separate referrals raising
concerns about Bell’s health and well-being. Several referrals were made by individuals
concerned that Annette Shine, Bell’s caretaker and alleged significant other, was
financially exploiting Bell and did not have his best interests in mind. After investigation,
the Department closed all reports and concluded that any claims of abuse, neglect or
exploitation were inconclusive or unsubstantiated. Bell’s certified professional guardian,
Northstar Case Management (Northstar), filed claims on his behalf against the
1 During the pendency of this appeal, Bell passed away and Channa Copeland, his former
guardian, was substituted in his place as personal representative for the Estate of Raymond Bell.
No. 86505-6-I/2
Department, including for an implied statutory cause of action for negligent
investigation. The trial court granted the Department’s motion for summary judgment
dismissing Bell’s claims except for the claim of outrage.
A commissioner of this court granted discretionary review of the dismissal of
Bell’s statutory negligence claim. The sole issue before this court is whether under the
abuse of vulnerable adults act (AVAA), chapter 74.34 RCW—specifically, RCW
74.34.063 and .067—a private plaintiff may pursue a claim against the State for
negligent investigation or negligent failure to provide protective services.
Applying the test in Bennett v. Hardy, 113 Wn.2d 912, 784 P.2d 1258 (1990), we
conclude that although the AVAA grants the Department the authority to investigate
referrals of abuse and neglect, it does not mandate it to do so. Further, implying a cause
of action against the Department for negligent investigation and failure to provide
protective services is not consistent with the statutory purpose. We therefore hold there
is no implied statutory cause of action against the State for negligent investigation or
ensuing failure to provide protective services and affirm the trial court’s order granting
summary judgment and dismissing Bell’s claim for negligent investigation.
FACTS
Raymond Bell was diagnosed with dementia in January 2020 and had other
documented health issues such as diabetes, kidney disease, and hypertension. Bell’s
dementia diagnosis was associated with memory problems, significant cognitive
challenges, and the inability to independently care for himself. Based on these
conditions, Bell was considered a vulnerable adult under the AVAA. See RCW
74.34.005(3), (4).
2
No. 86505-6-I/3
Between February 2020 and July 2021, the Adult Protective Services (APS)
subdivision of the Department received nine referrals regarding Bell. 2 The first referral to
APS on February 21, 2020, expressed concern for Bell’s ability to regularly take his
medications and manage his finances. This referral was assigned to APS investigator
Katie Condreay. While the first referral investigation was pending, APS received a
second referral regarding Bell on March 12, 2020, alleging that Bell may have been
financially exploited by an unknown perpetrator who took his car keys, wallet, and
jewelry. Bell disclosed to Condreay that he had a friend, Annette Shine, who was being
released from prison and would “help take care of him.”
As part of Condreay’s investigation into the self-neglect and financial exploitation
claims, she interviewed Bell at his home on March 18, 2020. Bell explained he was
misplacing items and struggling to pay his bills. In her report, Condreay noted that Bell
had “accepted a referral for Case Management to assist with obtaining benefits and
care coordination” and was assigned a case manager through Aging and Disability
Services (ADS). In April 2020, Condreay completed her investigations into the two
referrals and determined that the claim of self-neglect was inconclusive and the claim of
financial exploitation was unsubstantiated.
On July 23, 2020, APS received its third referral about Bell alleging neglect by
Shine, to which APS assigned investigator Alexis Pullen. This referral was prompted by
Bell’s admission to the hospital on July 15, where he was involuntarily held for
monitoring after he allegedly pulled a knife on Shine. While Bell was at the hospital, a
2 Some of the reports identify the reporter. However, other referrals redact the reporter
information or may have been made anonymously. See RCW 74.34.067(2) (“[T]he department shall
interview the complainant, unless anonymous.”).
3
No. 86505-6-I/4
hospital social worker, Debbie Sullivan, expressed to Pullen that she did not feel that
Shine was acting in Bell’s best interest and inquired about obtaining guardianship for
Bell. Pullen reported that although Bell had been referred to ADS for case management
services and was approved for 63 hours per month through the CFC/COPES program, 3
he was not financially eligible. Pullen completed her investigation on August 17. She
concluded that the allegation of neglect by Shine was unsubstantiated and that Bell’s
behavior “was due to progression in his dementia and not as a result of poor care by”
Shine.
On August 19, 2020, APS received its fourth referral about Bell alleging financial
exploitation by Shine, prompted by Shine’s use of Bell’s car, allegedly absent his
permission. APS investigator Sofia Lawrence completed her investigation on April 14,
2022, finding that the claim of financial exploitation was inconclusive and that “there is
contradictory and insufficient evidence to make a clear finding.”
On September 25, 2020, APS received its fifth referral regarding Bell, alleging
self-neglect for not taking his medications or partaking in self-hygiene. APS investigator
Lauren Basnar completed her investigation on April 12, 2021, and found that the claim
of self-neglect was unsubstantiated.
3 Community Options Program Entry System (COPES) is “a medicaid home and community-
based services (HCBS) waiver program.” WAC 182-513-1100. Community First Choice (CFC) is “a
medicaid state plan home and community-based service.” Id. COPES provides services “for individuals
who, in the absence of the home and community-based services and supports provided under COPES,
would otherwise require the level of care furnished in a nursing facility.” See Washington State
Department of Social and Health Services, Long-Term Care Manual, at 7D.1, 7D.3 (last revised 05/2024),
https://www.dshs.wa.gov/sites/default/files/ALTSA/hcs/documents/LTCManual/Chapter%207d.pdf.
Services covered by the COPES waiver act as a wraparound to services available to the CFC State Plan
program. Id. Pullen’s report notes that Shine could not act as Bell’s COPES caregiver “because she is a
felon.”
4
No. 86505-6-I/5
On December 29, 2020, APS received its sixth referral regarding Bell, this one
alleging financial exploitation by Shine. The referral was made after Bell attempted to
make a cash withdrawal with an expired identification card and was denied. Then, 15-20
minutes later, Shine attempted to cash a check “allegedly signed by” Bell. Basnar
completed her investigation on June 10, 2021, and concluded that the claim of financial
exploitation was inconclusive.
On April 8, 2021, APS received its seventh report alleging financial exploitation of
Bell by Shine, which was assigned to investigator Basnar. Bell alleged that Shine had
stolen jewelry from him, including “three gold rings with diamonds, [a] gold necklace,
[and] three watches.” Shine reported that Bell had directed her to sell the items at a
pawn shop on his behalf and return the proceeds to him. However, there were no
receipts to demonstrate such sales or who benefitted from the sales. Basnar completed
her report on June 10, finding that any claim of financial exploitation was inconclusive.
On June 8, 2021, APS received its eighth referral alleging financial exploitation of
Bell by Shine. In October, Basnar communicated with Bell’s neighbor Caroline Etienne,
who was concerned about Shine’s involvement in the sale of Bell’s home. Etienne
alleged Bell was “forced to pack all of his belongings into a Uhaul [that Shine] got a hold
of” and that Shine “took [Bell’s] property to an unknown location.” Etienne further
alleged that Shine took “$600,000 from the sale of [Bell’s] home and left [him] with
nothing.”4
On July 6, 2021, APS received its ninth referral about Bell, again alleging
financial exploitation by Shine, which was assigned to APS investigator Lawrence. This
4 The appellate record does not indicate whether the APS made a determination regarding these
allegations.
5
No. 86505-6-I/6
claim alleged similar issues as before regarding the sale of Bell’s home and the location
of some of his property. Lawrence interviewed the new owner of Bell’s former home,
Ms. Behrman. Behrman indicated that Bell had moved out on June 26, 2021, and she
was concerned that Shine had manipulated Bell into selling the home because he tried
to gain entry on several occasions and “did not appear to know that he no longer
resided at the property.” On November 1, 2021, Lawrence interviewed Shine about the
sale of Bell’s home. Shine reportedly stated that Bell took out a $10,000 advance loan
to help them move out of the house and place things in storage. The record indicates
Bell received “about 178 or 85,000 dollars” for the sale of the house. Shine reportedly
stated that Bell received an initial payment of $60,000, which he allegedly wanted to
split with Shine “so she could get on her feet and get her own place.” Shine reported
that Bell gave her two debit cards “that had $25,000 a piece,” while he retained only
$10,000. Lawrence completed her report on April 15, 2022, and found the claim of
financial exploitation to be inconclusive due to “insufficient evidence to make a clear
finding as to the allegation.”
In April 2022, Northstar was appointed as Bell’s certified professional guardian.
In May 2023, Northstar filed a complaint on Bell’s behalf against the Department
alleging common law and statutory negligence pursuant to RCW 74.34.063 and .067,
gross negligence, outrage, and negligent infliction of emotional distress. The
Department filed a motion for summary judgment seeking to dismiss all of Bell’s claims.
Bell agreed to dismiss his negligent infliction of emotional distress and common law
negligence claims. Bell also filed a motion for partial summary judgment in his favor on
the elements of duty and breach for his statutory negligence claim.
6
No. 86505-6-I/7
On March 4, 2024, the trial court denied Bell’s motion and granted the
Department’s motion as to all claims except for that of outrage. Bell filed a motion
seeking RAP 2.3(b)(4) certification and to stay the proceedings pending appeal. The
trial court granted Bell’s motion, and a commissioner of this court granted discretionary
review.
DISCUSSION
Bell contends that the trial court erred when it granted the Department’s motion
for summary judgment and denied his motion for summary judgment because the AVAA
establishes an implied private cause of action for negligence. Specifically, Bell asserts
that RCW 74.34.063 and .067 create mandatory duties to investigate and provide
protective services, respectively. Thus, he contends, although the statute does not
include an express remedy for breach of these duties, there is an implied remedy under
Bennett v. Hardy, 113 Wn.2d 912, 919-20, 784 P.2d 1258 (1990). The Department
counters that the AVAA does not create an implied cause of action and, therefore, the
trial court’s dismissal of Bell’s statutory negligence claim was proper.
On appeal, we review orders on summary judgment motions de novo. Keck v.
Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). The court must consider “the
evidence and all reasonable inferences from the evidence in the light most favorable to
the nonmoving party.” Id. Summary judgment is proper when “there is no genuine issue
as to any material fact” and the moving party is entitled to judgment as a matter of law.
CR 56(c).
The court reviews de novo questions of law, such as whether a defendant owes
a duty to the plaintiff. Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275, 979
7
No. 86505-6-I/8
P.2d 400 (1999). Statutory interpretation is also a question of law the court reviews de
novo. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532, 542, 374 P.3d 121 (2016).
The threshold determination in any negligence action is whether a duty of care is
owed by the defendant to the plaintiff. Taylor v. Stevens County, 111 Wn.2d 159, 163,
759 P.2d 447 (1988). If the defendant owed the plaintiff no duty, the negligence action
fails. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1988). A duty of care
may exist by virtue of the common law or a statute. Mathis v. Ammons, 84 Wn. App.
411, 416-17, 928 P.2d 431 (1996). And as the Supreme Court has stated, because
“ ‘we can . . . assume that the legislature would not enact a remedial statute granting
rights to an identifiable class without enabling members of that class to enforce those
rights,’ ” in such situations, courts will recognize an implied cause of action. Bennett,
113 Wn.2d at 919-20 (quoting McNeal v. Allen, 95 Wn.2d 265, 277, 621 P.2d 1285
(1980) (Brachtenbach, J., dissenting)).
To determine whether to imply a cause of action, a court “must resolve the
following issues: first, whether the plaintiff is within the class for whose ‘especial’ benefit
the statute was enacted; second, whether legislative intent, explicitly or implicitly,
supports creating or denying a remedy; and third, whether implying a remedy is
consistent with the underlying purpose of the legislation.” Bennett, 113 Wn.2d at 920-
21.
The parties do not dispute that Bell is within the class of persons that RCW
74.34.063 and .067 were designed to protect. A person is considered a vulnerable adult
under the AVAA when they “lack the ability to perform or obtain those services
necessary to maintain [their] well-being” or when they “have health problems that place
8
No. 86505-6-I/9
[them] in a dependent position.” RCW 74.34.005(3), (4). Here, the APS reports explain
that Bell is a vulnerable adult “due to a diagnosis of dementia” and a demonstrated
“mental inability to care for himself independently.” Thus, the first prong of the Bennett
test weighs in favor of implying a cause of action.
However, the Department contends Bell cannot establish the second and third
prongs of the Bennett test—legislative intent and consistency with the purpose. 5 We
address each of those prongs in turn.
I. Second Prong of Bennett Test: Legislative Intent
The question of whether the legislative intent “supports creating or denying a
remedy is a question of statutory interpretation.” Konicke v. Evergreen Emergency
Servs., P.S., 16 Wn. App. 2d 131, 141, 480 P.3d 424 (2021). The purpose of statutory
interpretation is to determine legislative intent in a manner as to give effect to that
intent. Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 80, 91, 392 P.3d
1025 (2017). A reviewing court ceases its inquiry if the plain language of the statute has
a single interpretation. In re Adoption of T.A.W., 186 Wn.2d 828, 840, 383 P.3d 492
(2016). Plain meaning is understood within “the context of the entire act as well as any
‘related statutes which disclose legislative intent about the provision in question.’ ” In re
Dependency of Z.J.G., 196 Wn.2d 152, 163, 471 P.3d 853 (2020) (internal quotation
marks omitted) (quoting Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003
5 Bell contends that the Department is precluded from arguing that the third Bennett element is
not satisfied—specifically, that implying a cause of action would contradict a purpose of the statute apart
from the protection of vulnerable adults, to preserve the autonomy of vulnerable adults—because it did
not raise the argument before the trial court. We exercise our discretion under RAP 2.5(a) to consider this
argument.
9
No. 86505-6-I/10
(2014)). However, if the plain meaning is ambiguous, then a reviewing court may look at
the legislative history to determine the legislative intent. Jametsky, 179 Wn.2d at 762.
With regard to the AVAA, in 1999, when the legislature consolidated provisions
protecting vulnerable adults into chapter 74.34 RCW, it stated,
The purpose of chapter 74.34 RCW is to provide the department [of social
and health services] and law enforcement agencies with the authority to
investigate complaints of abandonment, abuse, financial exploitation, or
neglect of vulnerable adults and to provide protective services and legal
remedies to protect these vulnerable adults.
LAWS OF 1999, ch. 176, § 1. Pointing to this statutory language, as well as RCW
74.34.063 and .067, Bell claims that the legislature recognized mandatory duties to
investigate and to provide protective services and, though it did not articulate an explicit
cause of action for breach of those duties, it implied a legal remedy. Thus, he suggests
that when looking at the larger statutory scheme, it is evident that the legislature
intended for vulnerable adults to have recourse to seek legal action when they were
harmed by breach of these duties.
As a general rule, “the word ‘shall’ is presumptively imperative and operates to
create a duty rather than conferring discretion.” State v. Bartholomew, 104 Wn.2d 844,
848, 710 P.2d 196 (1985); see also Vehicle/Vessel LLC v. Whitman County, 122 Wn.
App. 770, 780, 95 P.3d 394 (2004) (use of “shall” is mandatory when it operates to
confer a right and establish a duty). By contrast, “words like ‘may’ are permissive and
discretionary.” State v. Stivason, 134 Wn. App. 648, 656, 142 P.3d 189 (2006); see also
Konicke, 16 Wn. App. 2d at 142 (the word “may” in RCW 71.05.050(3) did not create a
mandatory duty requiring health care providers to detain patients suspected of
qualifying for an involuntary commitment and, therefore, the statute did not “provide a
10
No. 86505-6-I/11
corresponding right of action for not doing so”). While the Department acknowledges
RCW 74.34.063 and .067 include some mandatory language, it contends that by relying
only on this language, “Bell’s approach divorces the language he relies upon from its
true context,” contrary to the statutory construction principles of interpreting the statute
in its context and considering the statutory scheme as a whole. Instead, it argues, we
must examine the structure of the statute and the context of the specific provisions on
which Bell relies, RCW 74.34.063, relating to the Department’s obligations to respond to
reports of suspected abuse, and RCW 74.34.067, relating to investigations of suspected
abuse. We agree with the Department.
First, the statute distinguishes between mandatory and permissive reports. RCW
74.34.035. Then, it addresses the content of such reports and describes the information
that they “shall contain,” “if known.” RCW 74.34.040. The next section addresses
“[i]mmunity from liability” resulting from reports or testimony by persons “participating in
good faith in making a report under this chapter or testifying” about alleged abuse,
neglect, abandonment, financial exploitation, or self-neglect of a vulnerable adult. RCW
74.34.050. This section specifies that “the making of permissive reports as allowed in
this chapter does not create any duty to report and no civil liability shall attach for any
failure to make a permissive report as allowed under this chapter.” RCW 74.34.050(1).
The statute then sets out penalties for failure to report by persons who are required to
report and fail to do so, as well as for false reports made intentionally, maliciously, or in
bad faith. RCW 74.34.053.
After these sections regarding reporting, the statute addresses the Department’s
responses to reports, beginning with RCW 74.34.063. The plain language of RCW
11
No. 86505-6-I/12
74.34.063 includes the “presumptively imperative” word “shall” in several places. RCW
74.34.063(1) provides that once the Department receives a report of suspected abuse
or neglect, it “shall initiate a response to a report, no later than twenty-four hours after
knowledge of the report.” (Emphasis added). Further, the statute requires that “[w]hen
the initial report or investigation by the department indicates that the alleged
abandonment, abuse, financial exploitation, or neglect may be criminal, the department
shall make an immediate report to the appropriate law enforcement agency.” RCW
74.34.063(2) (emphasis added). If the investigation reveals that a crime may have been
committed, “[t]he law enforcement agency of the department shall report the incident in
writing to the proper county prosecutor or city attorney for appropriate action.” RCW
74.34.063(3) (emphasis added). And “[t]he department shall notify the proper licensing
authority concerning any report received under this chapter” that alleges that a person
who has a state-regulated professional license, certification, or registration has abused,
financially exploited, or neglected a vulnerable adult. RCW 74.34.063(6) (emphasis
added). Thus, RCW 74.34.063 mandates that the Department take certain actions in
response to certain kinds of reports. But it does not mandate that it investigate.
The next section in the statute, RCW 74.34.067—which specifically addresses
investigations, interviews, case planning, and agreements with tribes—includes both
mandatory and permissive language. This section begins, “Where appropriate, an
investigation by the department may include a private interview with the vulnerable
adult.” RCW 74.34.067(1) (emphasis added). If the Department has reason to believe
the vulnerable adult needs the protection of a guardian, “the department may bring a
guardianship” or other protective proceedings. RCW 74.34.067(5) (emphasis added).
12
No. 86505-6-I/13
The statute also uses the word “may” to describe permissible actions during the
Department’s investigation, such as conducting case planning and consulting with
mandatory reporters and tribal representatives, sharing information with the office of
public guardianship, and photographing a vulnerable adult or their environment. RCW
74.35.067(3), (6), (9). And the Department “may enter into agreements with federally
recognized tribes to investigate reports . . . and may notify tribal law enforcement or
another tribal representative,” at which point “the tribe may assume jurisdiction of the
matter.” RCW 74.34.067(8) (emphasis added).
In addition to the aforementioned permissive language, RCW 74.34.067 uses
mandatory language regarding certain aspects of an investigation. While RCW
74.34.067(1) provides that the Department’s investigation “may include a private
interview with the vulnerable adult,”
the department shall interview the complainant, unless anonymous, and
shall use its best efforts to interview the vulnerable adult or adults harmed,
and, consistent with the protection of the vulnerable adult shall interview
facility staff, any available independent sources of relevant information,
including if appropriate the family members of the vulnerable adult.
RCW 74.34.067(2) (emphasis added). Subsection (4) requires that “[t]he department
shall prepare and keep on file a report of each investigation conducted by the
department for a period of time in accordance with policies established by the
department.” RCW 74.34.067(4) (emphasis added).
Further, RCW 74.34.067 addresses the Department’s authority after an
investigation is completed. Subsection (7) requires that
[w]hen the investigation is completed and the department determines that
an incident of abandonment, abuse, financial exploitation, neglect, or self-
neglect has occurred, the department shall inform the vulnerable adult of
their right to refuse protective services, and ensure that, if necessary,
13
No. 86505-6-I/14
appropriate protective services are provided to the vulnerable adult, with
the consent of the vulnerable adult.
RCW 74.35.067(7) (emphasis added). The Department may—that is, it is
authorized but is not required to—report the outcome to certain named agencies
or programs, as well as state or local government authorities responsible for
licensing or certification of such agencies or programs. RCW 74.34.068(1), (2)
(emphasis added). Similarly, RCW 7.105.110(1) gives the Department
discretionary authority to seek a protection order on behalf of a vulnerable adult,
but only with the vulnerable adult’s consent.
Thus, although RCW 74.34.067 imposes certain requirements once the
Department embarks on an investigation, it contains no express mandate that the
Department conduct an investigation in the first place. This subsection contrasts
with RCW 74.34.035’s requirement that mandated reporters “shall immediately
report” to certain entities in certain specified circumstances. Moreover, even
where RCW 74.34.067 uses the term “shall” with regard to the Department, these
requirements are bounded by conditions—e.g., “the department shall interview
the complainant, unless anonymous” and “shall use its best efforts to interview
the vulnerable adult or adults harmed . . . including if appropriate the family
members of the vulnerable adult.” RCW 74.34.067(2) (emphasis added).
Nonetheless, Bell argues that RCW 74.34.050(2), which states that “[n]othing in
this chapter shall be construed as superseding or abridging remedies provided in
chapter 4.92 RCW,” indicates that the legislature intended to allow the State to be
“liable for breaches of mandatory duties set forth in chapter 74.34 RCW.” Chapter 4.92
14
No. 86505-6-I/15
RCW pertains to actions and claims against the State. Bell reads this language in RCW
74.34.050(2) too broadly.
Thus far, our Supreme Court has recognized an implied cause of action under
the AVAA only for vulnerable adults against mandatory reporters who fail to report. Kim,
185 Wn.2d 532. The court’s analysis in Kim is instructive. First, the court held that under
the first Bennett prong, the relevant portion of the AVAA, RCW 74.34.050, established a
mandatory duty to report under certain circumstances. Id. at 544. Next, the Kim court
noted that the AVAA provides immunity for those who in good faith make a report or
testify about alleged abuse or neglect, RCW 74.34.050, and reasoned that “the
provision of immunity from liability implies the possibility of civil liability.” Id. at 545. The
statute also specifies that “[t]he making of permissive reports . . . does not create any
duty to report and no civil liability shall attach for any failure to make a permissive report
as allowed under this chapter.” Id. (quoting RCW 74.34.050(1) (emphasis added)). By
contrast, the statute is silent as to any immunity for mandated reporters; thus, the Kim
court reasoned, the legislature “implicitly recognized the existence of a cause of action
against mandatory reporters who fail to report.” Id. As to the third Bennett prong, the
court held that an implied cause of action was consistent with the legislative intent to
ensure the Department and law enforcement “investigate suspected abuse, and are
able to provide protective services to abused vulnerable adults.” Id. at 546. Finally, the
court noted that even though RCW 74.34.200(1) explicitly includes a cause of action for
actual abuse of vulnerable adults living in a facility or receiving home care from certain
providers, this express liability provision did not preclude finding an implied cause of
action against mandated reporters who breach a statutory duty to report. Id.
15
No. 86505-6-I/16
As explained in Kim, an express statutory remedy does not necessarily preclude
finding an implied cause of action against others or for other harms. Id. The AVAA
addresses liability both by providing limited express statutory remedies and by explicitly
immunizing certain actions. RCW 74.34.200 provides a cause of action for damages
against certain entities:
In addition to other remedies available under the law, a vulnerable adult
who has been subjected to abandonment, abuse, financial exploitation, or
neglect either while residing in a facility or in the case of a person residing
at home who receives care from a home health, hospice, or home care
agency, or an individual provider, shall have a cause of action for
damages on account of his or her injuries, pain and suffering, and loss of
property sustained thereby. This action shall be available where the
defendant is or was a corporation, trust, unincorporated association,
partnership, administrator, employee, agent, officer, partner, or director of
a facility, or of a home health, hospice, or home care agency licensed or
required to be licensed under chapter 70.127 RCW, as now or
subsequently designated, or an individual provider.
RCW 74.34.200(1). This section does not include the Department as a potential
defendant. Where the legislature contemplates specific remedies against certain
entities, it does not imply a cause of action against others. Martinez v. Wash. State
Univ., 33 Wn. App. 2d 431, 456, 562 P.3d 802 (2025) (statute did not name universities
as potential defendants and thus intentionally declined to extend liability to them),
review granted, 4 Wn.3d 1032, 570 P.3d 714 (2025). 6
Regarding the relevance of immunity provisions, Bell quotes Beggs v.
Department of Social & Health Services, for the proposition that a grant of immunity
6 Bell submitted a statement of supplemental authority arguing that Martinez supports his position
as to legislative intent. In Martinez, this court held that the legislative intent of former RCW 28B.10.901
(1993) did not support implying a cause of action against universities for failing to prevent hazing. 33 Wn.
App. 2d at 457. Bell argues that Martinez is distinguishable because, unlike here, the relevant statute did
not require universities to take “affirmative action” to prevent hazing and so did not indicate an intent to
imply a remedy. Id. But the same is true here; the AVAA does not require the Department to investigate
or provide protective services.
16
No. 86505-6-I/17
implies that civil liability can exist. 171 Wn.2d 69, 78, 247 P.3d 421 (2011). In Beggs,
the court addressed whether RCW 26.44.030 implied a cause of action against a
mandatory reporter who failed to report suspected child abuse or neglect. Id. at 77. The
court reasoned that even though the relevant statute provided immunity from liability for
people who cooperated in good faith with an investigation arising from a report, “ ‘[this]
grant of immunity clearly implies that civil liability can exist in the first place.’ ” Id. at 78
(quoting Doe v. Corp. of the President of the Church of Jesus Christ of Latter-Day
Saints, 141 Wn. App. 407, 422-23, 167 P.3d 1193 (2007)). Because the statute
imposed a duty on certain professionals to report child abuse, “[t]he statutory scheme
supports an implied cause of action for a failure to fulfill that duty.” Id. And in Kim, the
court noted that the analysis in Beggs “guide[d] its analysis.” Kim, 185 Wn.2d at 542.
However, what these cases tell us is that a grant of immunity to certain actors
does not always suggest legislative intent to create a remedy against others. Rather, we
must examine the specific actions to which the immunity applies, and whether those
actions are the same as those alleged to give rise to liability in a particular case.
As discussed above, for the same reason that Kim is not dispositive of whether
there is an implied cause of action against the Department, neither does Beggs support
an implied cause of action in the circumstances of this case: both Beggs and Kim
involved mandatory reporters. The AVAA provides immunity from liability to “[a] person
participating in good faith in making a report under this chapter or testifying about
alleged abuse, neglect, abandonment, financial exploitation, or self-neglect of a
vulnerable adult in a judicial or administrative proceeding.” RCW 74.34.050(1). Further,
this provision explains, “The making of permissive reports as allowed in this chapter
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does not create any duty to report and no civil liability shall attach for any failure to
make a permissive report as allowed under this chapter.” Id. But these immunity
provisions relating to liability of mandatory and permissive reporters do not demonstrate
legislative intent to create a cause of action against the Department.
The Department contends that because RCW 74.34.200(1) provides an explicit
remedy for abuse or neglect but excludes the Department as an entity subject to suit,
the legislature did not intend an implied cause of action against it for failure to protect
vulnerable adults. The Department points to Carter v. Department of Social & Health
Services, where the court held that RCW 26.44.031 did not support an implied cause of
action against the Department for failure to destroy records of prior investigations of
child abuse or neglect. 26 Wn. App. 2d 299, 313-14, 526 P.3d 874 (2023). There, one
provision of the statute, RCW 26.44.031(5)(b), allowed the remedies of injunctive relief
and a monetary penalty, but only for certain people and only for improper disclosures to
certain entities, and another provision allowed “injunctive or other appropriate relief.”
RCW 26.44.031(5)(a). The Carter court held that because the legislature “specifically
provided an enforcement mechanism in the form of injunctive relief,” the legislature did
not intend to create a remedy beyond that, including, e.g., for damages. 26 Wn. App. 2d
at 314. The court distinguished Kim, noting that the AVAA created a right without an
enforcement mechanism for that particular right. Clark, 26 Wn. App. 2d at 314.
We agree with the Department. The AVAA provides a cause of action for
damages against specified entities, including “a corporation, trust, unincorporated
association, partnership, administrator, employee, agent, officer, partner, or director of a
facility, or of a home health, hospice, or home care agency licensed or required to be
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licensed under chapter 70.127 RCW, as now or subsequently designated, or an
individual provider.” RCW 74.34.200. But the Department is not on this list.
The only immunity provision in the statute regarding the Department supports the
conclusion that the legislature intended to limit the Department’s liability. In 2007, the
legislature amended RCW 74.34.150 and explicitly immunized the Department and the
State from liability for “seeking or failing to seek” a civil protection order for a vulnerable
adult. LAWS OF 2007, ch. 312, § 8. 7 Otherwise, as to the Department, the statute is silent
as to immunity.
The fact that the statute immunizes some actions suggests that the legislature
did intend a remedy if other actions—in particular, those that it mandates—are
performed negligently. However, as the legislature authorized but did not mandate the
Department to investigate or to provide protective services, those immunity provisions
cannot be read to intend a cause of action against the Department.
We hold that the legislature did not impose a duty on the Department to
investigate or provide protective services, nor did it intend a remedy for negligence for
such non-mandatory actions. The second Bennett prong weighs against implying a
cause of action against the Department as pleaded in this case.
II. Third Prong of Bennett Test: Consistency with the Purpose of the Statute
“[W]hen the legislature creates a duty, [the court] may provide a remedy for its
breach, if the remedy is appropriate to further the purposes of the statute and is needed
to assure its effectiveness.” M.W. v. Dep’t of Soc. & Health Servs., 149 Wn.2d 589, 596,
70 P.3d 954 (2003). Bell argues that an implied cause of action under RCW 74.34.063
7This provision, former RCW 74.34.150 (2007), was recodified in 2021 as RCW 7.105.110(1).
See LAWS OF 2021, ch. 215, § 15.
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and .067 is consistent with the stated purposes of providing vulnerable adults with legal
remedies and protective services, and ensuring autonomy of vulnerable adults because
doing so would act as an enforcement mechanism to ensure the Department is
accountable for its actions, citing Tyner v. State Department of Social & Health
Services, Child Protective Services, 141 Wn.2d 68, 81, 1 P.3d 1148 (2000).
In Tyner, the court held that pursuant to former RCW 26.44.050 (1987), 8 the
Department owed a duty of care to the parent of a child suspected of abuse when
investigating claims of child abuse. 141 Wn.2d at 81. Therefore, the court reasoned, an
implied remedy was available to guarantee “ ‘[a]ccountability through tort liabilities,’ ” to
assure “ ‘a certain standard of performance from government entities.’ ” Id. at 80
(quoting Bender v. City of Seattle, 99 Wn.2d 582, 590, 664 P.2d 492 (1983)). The
statute in Tyner, former RCW 26.44.050 (1987), contains clear language mandating a
duty to investigate child abuse allegations:
Upon the receipt of a report concerning the possible occurrence of abuse
or neglect, it shall be the duty of the law enforcement agency or the
department of social and health services to investigate and provide the
protective services section with a report in accordance with the provision
of chapter 74.13 RCW, and where necessary to refer such report to the
court.
141 Wn.2d at 77 (emphasis added). As the Tyner court reasoned, there would never be
a situation “in which the State owes a duty to both initiate and not initiate” an action. 141
Wn.2d at 81.
Here, we need not search far to unearth the AVAA’s stated purpose, 9 as the
legislation included a clear statement: “The purpose of chapter 74.34 RCW is to provide
8 LAWS OF 1987, ch. 450, § 7.
9 The Department focuses on the legislature’s intent to preserve the autonomy of vulnerable
adults, noting that the legislature made the provision of protective services discretionary and subject to a
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the department and law enforcement agencies with the authority to investigate
complaints of abandonment, abuse, financial exploitation, or neglect of vulnerable
adults.” See LAWS OF 1999, ch. 176, § 1 (emphasis added). This language contrasts
with the language in the child abuse and protection statute discussed in Tyner: “ ‘it shall
be the duty of the law enforcement agency or the department of social and health
services to investigate and provide the protective services section with a report.’ ” 141
Wn.2d at 77 (quoting former RCW 26.44.050 (1987)). In the AVAA, the legislature was
clear in granting the Department authority to investigate complaints but not requiring it
to do so.
Therefore, after examining the third Bennett prong, we conclude that implying a
cause of action under RCW 74.34.063 and .067 for negligent investigation would be
inconsistent with the stated legislative purpose of the AVAA.
CONCLUSION
Applying the Bennett test, we hold that there is no implied cause of action for
negligent investigation of referrals of suspected abuse under the AVAA. Accordingly,
the trial court did not err in dismissing Bell’s claims. We affirm.
vulnerable adult’s right to refuse services. See RCW 74.34.067(2). Thus, the Department contends that
implying a cause of action for failure to provide services would contravene the legislative purpose and the
right of vulnerable adults to refuse services. In support, the Department points to Turner v. Department of
Social & Health Services, where the court concluded that implying a cause of action against the
Department for its case management would be contrary to its “statutory goal of allowing vulnerable adults
the choice to live in independent settings,” when the plaintiff voluntarily chose to live independently. 198
Wn.2d 273, 300, 493 P.3d 117 (2021). We need not reach this argument regarding a statutory purpose
with regard to vulnerable adults’ autonomy when the AVAA included a clear statement of purpose. See
LAWS OF 1999, ch. 176, § 1.
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WE CONCUR:
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