following Butz, 438 U.S. 478, 98 S.Ct. 2894, Creelman, 67 Wash.2d 882, 410 P.2d 606, Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)
How later courts described this case
- following Butz, 438 U.S. 478, 98 S.Ct. 2894, Creelman, 67 Wash.2d 882, 410 P.2d 606, Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)
- following Butz, 438 U.S. 478, Creelman, 67 Wn.2d 882, Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997)
- negligent investigation claim by father suspected of abuse; scope of duty not an issue on appeal
- “When an employee cauBes injury by acts beyond the scope of employment, an employer may be liable for negligently supervising the employee.”
Written by the judges who cited it.
The opinion
Baker, C. J.
(concurring) — As I read the majority opinion, it implicitly recognizes that the State is absolutely immune from a damage claim based upon the caseworker’s decision to file a dependency petition, the filing thereof, and vigorous prosecution of the allegations therein. We hold, however, that absolute immunity does not extend to a claim based upon a theory of negligent investigation.
I agree, but I write separately to express caution concerning the scope of allowable elements of damage if this claim proceeds on remand. This case did not begin as a claim for negligent investigation, resulting in increased mental anguish by reason of prolonged separation from appellant’s children. Rather, the case was pleaded and tried on a variety of theories, almost all of which are directly based upon the conduct of the State in deciding to file, then filing and prosecuting a dependency proceeding. Indeed, nowhere in this record does the appellant clearly state a claim for damages by reason of prolonged separation resulting from negligent investigation, as that claim is characterized in the majority opinion.
This case does not involve a claim for damages on behalf of appellant’s children. Thus, it does not involve a claim for damages on behalf of children who were allegedly abused by reason of an extrajudicial, negligent placement by the State, as in Babcock v. State. 40 Rather, after the dismissal of all of the theories of recovery advanced by appellant below *587 save for the claim based upon negligent investigation, the case involves only a single claim for damages suffered by a noncustodial parent for negligent investigation. Those damages cannot include impacts on the father resulting from the State’s decision to file, filing, or prosecution of the dependency petition. Any such claims are barred. To succeed on his claim, appellant will have to prove negligence and proximate cause. To prove the latter, he will have to prove not only that the deceased caseworker should have pursued information that the stepfather had anger problems, and had received mental therapy, but that such additional investigation would probably have led to an earlier decision on the part of the State to terminate the dependency proceedings against the father. Such proof may or may not require evidence that additional investigation would have disclosed abuse against the children by the stepfather, but certainly will require some evidentiary basis for the State to have been able to conclude that the children’s accusations against their father were obviously untrue. Further, the father’s voluntary stipulation to non-visitation, followed by his voluntary departure from the country for several years, will obviously impact any potential damage claim.
I raise these concerns in order to point out that the majority opinion leaves unanswered many more questions than it resolves. This is perhaps understandable when one realizes that the case as originally pleaded and tried was much broader in scope, and rested primarily upon allegations of misconduct that are clearly barred by the doctrine of absolute immunity.
Review denied at 135 Wn.2d 1015 (1998).
Babcock v. State, 116 Wn.2d 596 , 809 P.2d 143 (1991).