* Esther Kim, Et Al., App/cross-res.. V. Christine Thomas, Res/cross-app.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ESTHER KIM, as Personal
Representative of the Estate of HO JM
BAE on behalf of Mi-Soon Kim, Jae C.
Kim, Chang Soon Kim, Jae Hong Kim,
and Kyoung Soon Kim, surviving family
members, and the ESTATE OF HO IM
BAE,
Appellants/Cross-Respondents,
LAKESIDE ADULT FAMILY HOME,
GRETCHEN DHALIWAL
INCORPORATION (G.D., INC.), a
Washington Corporation d/b/a
LAKESIDE AFH, GRETCHEN
DHALIWAL, individually,
Defendants,
ALPHA NURSING AND SERVICES
INCORPORATED, a Washington
Corporation;
Respondent,
CHRISTINE THOMAS, individually,
Respondent/Cross-Appellant,
and
"JANE AND JOHN DOES" l-V,
individually,
Defendants.
No. 70892-9-
DIVISION ONE
ORDER WITHDRAWING OPINION
AND SUBSTITUTING OPINION
The court has determined that the opinion filed on February 17, 2015,
should be withdrawn and a substitute published opinion be filed. 	Now, therefore,
it is hereby
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 2
ORDERED that the opinion filed on February 17, 2015, be withdrawn and
a substitute published opinion be filed.
DATED this 	l(/^ day of 	(r&Ttk^ 	2015.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ESTHER KIM, as Personal
Representative of the Estate of HO JM
BAE on behalf of Mi-Soon Kim, Jae C.
Kim, Chang Soon Kim, Jae Hong Kim,
and Kyoung Soon Kim, surviving family
members, and the ESTATE OF HO IM
BAE,
Appellants/Cross-Respondents,
LAKESIDE ADULT FAMILY HOME,
GRETCHEN DHALIWAL
INCORPORATION (G.D., INC.), a
Washington Corporation d/b/a
LAKESIDE AFH, GRETCHEN
DHALIWAL, individually,
Defendants,
ALPHA NURSING AND SERVICES
INCORPORATED, a Washington
Corporation;
Respondent,
CHRISTINE THOMAS, individually,
Respondent/Cross-Appellant,
and
"JANE AND JOHN DOES" l-V,
individually,
Defendants.
No. 70892-9-1
DIVISION ONE
PUBLISHED OPINION
FILED: 	March 16, 2015
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Trickey, J. — The Washington vulnerable adult protection act, 	chapter
74.34 RCW, requires mandated reporters to notify the Department of Social and
Health Services (DSHS) where there is "reasonable cause to believe" that abuse
has 	occurred. 	RCW 74.34.035(1). 	The 	act 	also 	requires 	a 	report 	to 	law
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 2
enforcement when one has "reason to suspect" that a physical assault has taken
place. RCW74.34.035(3). Here, the defendant, a nurse, informed DSHS about a
report that she had received regarding potential abuse at the adult family home.
There was no duty to call law enforcement about someone else's patient when the
information came from a person with whom the defendant was familiar and whose
reliability was questionable.
Nor did 	the plaintiff establish that a second nurse had a duty to call
authorities when she observed the patient back in bed, with her eyes open, and
able to move her legs, after a fall on the floor the day before.
Because the plaintiff has failed to establish any duty, a necessary element
ofa negligence action, summary judgment dismissal was appropriate.
We affirm the trial court.
FACTS
Ho Im Bae was one of four inpatient residents at Lakeside Adult Family
Home. 	Lakeside was owned and operated by Gretchen Dhaliwal Inc.
Bae was 	admitted to Lakeside on January 	23, 2009, suffering 	from
Parkinson's, arthritis, dementia, hypertension, hyperlipidemia, and spinal stenosis.
She 	died 	less than three 	months 	later on March 	30 from 	acute 	morphine
intoxication. 	Morphine was not a prescribed drug for Bae. 	Her death was ruled a
homicide.
Lakeside employed Fannie Irawati as a caregiver for Bae during this time.
Two employees of Alpha Nursing and Services Inc., Christine Thomas, registered
nurse (RN), and Marian Binondo, licensed practical nurse, provided nursing care
to two of the four residents at Lakeside, but did not provide nursing services for
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 3
Bae. 	Binondo filled 	in for the regularly assigned Thomas on weekends and
vacation days in March 2009.1
Binondo was in the kitchen at Lakeside with Kerri Salzbrun, her patient,
when she heard a thud from the adjacent room. 	Salzbrun entered the adjacent
room and Binondo followed. 	Binondo saw Bae lying on the floor near her bed.
Binondo told Irawati that Irawati might need to call 911 and that Bae might need
further assessment by her nurse. Irawati returned Baeto her bed and told Binondo
that Bae falls a lot, but that she would call Dhaliwal, an RN and the owner of
Lakeside, who lived across the street from the home. Binondo saw that Bae's eyes
were open and she was able to move her legs. 	She did not observe any bruising
at the time. 	As she left the facility, Binondo saw Irawati on the telephone.
Salzbrun asserted in her declaration that she observed a knot on Bae's
head. 	Over the next day or two, the knot appeared larger and Bae's face was
covered in a large bruise.
On March 30, the morning of Bae's death, Thomas resumed her regular
rounds at Lakeside, visiting her patients. 	Salzbrun told Thomas that Bae was
being given morphine. 	Thomas checked the medical 	records 	located in the
kitchen. 	From there, she saw Bae, unable to walk, being taken to the bathroom to
be washed. 	Irawati "held her under her arms and walked backwards pulling her
1There appears to be a discrepancy regarding the date of the fall with Esther Kim stating
it occurred on March 28 and Alpha contending March 21. Appellants' Br. at 5; Resp't's Br.
at 6-7 	The respondent's brief indicates late March, but cites to an assessment by
Lakeside's owner occurring on March 21. 	1 Clerk's Papers (CP) at 844. 	Binondo's time
sheet does not have the patient written in for the March 21 date, but does for the March
28 and 29 dates. 	3 CP at 972. 	Binondo's deposition shows her agreeing with counsel
that the date could be March 28 as does Salzbrun's declaration. 	1 CP at 123, 127, 328-
29.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1/4
while her feet were sliding on the floor."2 	Thomas did not observe any bruising or
injuries.
Shortly after leaving Lakeside, at approximately 10:00 a.m., concerned
about the allegation of morphine, Thomas called the DSHS Complaint Resolution
Unit (1-800-END-HARM hot line) to report her observations and the concerns
Salzbrun had expressed to her about Bae. The phonewas busy. She called again
at 11:30 a.m. and left a voice mail message as instructed.
That same night, Salzbrun found Bae unresponsive and called 911. 	Bae's
death from acute morphine intoxication was subsequently ruled a homicide.
On April 1, both Binondo and Thomas were at Alpha's office. 	Thomas
related her concerns about Bae to Binondo. 	Binondo, recalling the fall that had
occurred when she was there, thought the patient might well have been the same
one. 	The supervisor recommended that Binondo report the incident to DSHS in
light of Thomas's recent information. 	Binondo placed a call and left a voice mail
message describing her observations.
Esther Kim, as personal representative of Bae's estate, brought this civil
action for damages against Lakeside and Dhaliwal. In 2012, she added Alpha and
Thomas, asserting a claim for negligence for failure to report Bae's abuse under
Washington's vulnerable adult protection act, chapter 74.34 RCW.
The 	parties stipulated to dismissal of all claims against Lakeside and
Dhaliwal 	individually. 	Thomas 	moved 	to 	dismiss 	the action 	against 	her for
improper service. Alpha moved to dismiss the action on summary judgment. The
trial court ruled service on Thomas was timely and proper and later dismissed the
21 CPat178.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 5
suit 	on 	summary judgment. 	The 	trial 	court 	also 	denied 	Kim's 	motion 	for
reconsideration. 	Kim appeals the summary judgment dismissal of her action.
Thomas cross-appeals the trial court's ruling that service on her in Norway was
proper.
ANALYSIS
I. 	Service on Thomas
Thomas first contends the trial court erred in not dismissing the action
against her because such service was untimely. 	Service on one of two or more
codefendants tolls the statutes of limitations as to unserved defendants. 	Powers
v. W.B. Mobile Servs.. Inc., 182 Wn.2d 159, 164, 339 P.3d 173 (2014); RCW
4.16.170. 	There is no dispute that Alpha, the codefendant, was timely served.
Thus, service on Thomas was timely.
Thomas next argues that service was invalid because it failed to comply
with the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, Nov. 15, 1965, 20. U.S.T. 361, 658
U.N.T.S. 163 (hereinafter Hague Convention). Because Thomas wasa Norwegian
citizen living in Norway at the time of service, Kim was obligated to serve her under
the requirements of the Hague Convention.
Under the supremacy clause, 	United States Constitution article VI, the
"Hague Convention preempts inconsistent methods of service prescribed by state
law in all cases to which [t]he Hague Convention applies." Broad v. Mannesmann
Anlaaenbau. AG. 141 Wn.2d 670, 674-75, 10 P.3d 371 (2000). 	Article 1 of the
Hague Convention provides that it applies "'in all cases, in civil or commercial
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 6
matters, where there is occasion to transmit a judicial or extrajudicial document for
service abroad.'" 	Broad, 141 Wn.2d at 678 (quoting Hague Convention art. 1).
The Hague Convention specifies that "the Central Authority of the State
addressed shall itself serve the document or shall arrange to have it served by an
appropriate agency ... by a method prescribed by its internal law for the service
of documents in domestic actions upon persons who are within its territory." Hague
Convention art. 5(a). 	Thus, service 	on Thomas would be effective if it was
accomplished in accordance with Norwegian law.
Further, the 	Hague Convention "allows service to be effected without
utilizing the Central Authority as long as the nation receiving service has not
objected to the method used." 	DeJames v. Magnificence Carriers, Inc., 654 F.2d
280, 288 (3d Cir. 1981); see ajso Restatement (third) of Foreign Relations Law
of the United States § 471 cmt. e (1987) ("for states that have objected to all of
the alternative methods, service through the Central Authority is in effect the
exclusive means").
Here, Kim personally served Thomas. 	The record contains the affidavit of
Thomas's process server, in which the process server swore that he personally
served Thomas at her residence, which is considered due and proper service
under the laws of Norway. 	Because Norway has not objected to personal service
and, in fact, such service complied with its laws, there is no reason to invalidate
service in this case.
Furthermore, such service was proper and accomplished in accordance
with the superior court's civil rules of procedure in Washington State. 	CR 4(i)(1)
provides for "Alternative Provisions for Service in a Foreign Country":
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 7
Manner. When a statute or rule authorizes service upon a party
not an inhabitant of or found within the state, and service is to be
effected upon the party in a foreign country, it is also sufficient if
service of the summons and complaint is made: (A) in the manner
prescribed by the law of the foreign country for service in that
country in an action in any of its courts of general jurisdiction; or
(B) as directed by the foreign authority in response to a letter
rogatory or a 	letter of request; or (C) upon 	an 	individual, by
delivery to him personally, and upon a corporation or partnership
or association, by delivery to an officer, a managing or general
agent; or (D) by any form of mail, requiring a signed receipt, to be
addressed and mailed to the party to be served; or (E) pursuant
to the means and terms of any applicable treaty or convention; or
(F) by diplomatic or consular officers when authorized by the
United States Department of State; or (G) as directed by order of
the court. Service under (C) or (G) above may be made by any
person who is not a party and is not less than 21 years of age or
who is designated by order of the court or by the foreign court.
The method for service of process in a foreign 	country must
comply with applicable treaties, if any, and must be reasonably
calculated, under all the circumstances, to give actual notice.
Here, the service complied with both the Hague Convention and CR 4(i)(1), giving
Thomas actual notice.
Because we hold that service was effective, we need not address whether
Thomas waived her affirmative defense objection to such service of process.
II. 	Summary Judgment
Standard of Review
A motion for summary judgment may be granted 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). When a defendant moves for summary judgment, it bears
the initial burden of showing the absence of an issue of material fact. 	Young v.
Kev Pharm.. Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). 	The burden then
moves to the plaintiff to "make a showing sufficient to establish the existence ofan
element essential to that party's case, and on which that party will bear the burden
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 8
of proof at trial." 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)). 	In meeting his burden,
the plaintiff cannot rely solely on allegations made in his pleadings but must set
forth specific facts showing that there is a genuine issue for trial. 	Young, 112
Wn.2d at 225-26. 	If the plaintiff does not meet his burden, "'there can be no
genuine issue as to any material fact, since a complete failure of proof concerning
an essential element of the nonmoving party's case necessarily renders all other
facts immaterial.'" 	Young. 112 Wn.2d at 225 (internal quotation marks omitted)
(quoting Celotex Corp.. 477 U.S. at 322-23).
This court reviews summary judgment orders de novo, viewing the facts and
reasonable inferences in the light most favorable to the nonmoving party. Lowman
v. Wilbur. 178 Wn.2d 165,168-69, 309 P.3d 387 (2013). 	Issues of negligence and
causation in tort actions are questions of fact not usually susceptible to summary
judgment, but a question of fact may be determined as a matter of law where
reasonable minds can reach only one conclusion. 	Moore v. Hagge, 158 Wn. App.
137, 147-48, 241 P.3d 787 (2010).
The elements of a negligence claim are (1) a legal duty owed by the
defendant to 	the 	plaintiff, 	(2) 	breach 	of that duty, 	(3) 	injury to 	the 	plaintiff
proximately caused by the breach, and (4) damages. 	Schoolev v. Pinch's Deli
Mkt.. Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). 	All four must be present to
establish a claim.
Legal Duty
Kim argues that Binondo and Thomas failed to report suspected abuse to
the appropriate governmental agency. She argues that both had a mandatory duty
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 / 9
to report the abuse and that their failure to do so constituted neglect under RCW
74.34.020(12).
RCW 74.34.020(12) defines "neglect" as follows:
"Neglect" means (a) a pattern of conduct or inaction by a person or
entity with a duty of care that fails to provide the goods and services
that maintain physical or mental health of a vulnerable adult, or that
fails to avoid or prevent physical or mental 	harm 	or pain to a
vulnerable adult; or (b) an act or omission bv a person or entity with
a 	duty 	of 	care 	that 	demonstrates 	a 	serious 	disregard 	of
conseguences of such a magnitude as to constitute a clear and
present danger to the vulnerable adult's health, welfare, or safety,
including 	but 	not 	limited 	to 	conduct 	prohibited 	under 	RCW
9A.42.100.
(Emphasis added.) To establish neglect, Kim must demonstrate that Alpha had a
duty to report.
We agree that both Binondo and Thomas were mandatory reporters under
the act:
"Mandated 	reporter" 	is 	an 	employee 	of the 	department; 	law
enforcement officer; social worker; professional school personnel;
individual provider; an employee of a facility; an operator of a facility;
an employee of a social service, welfare, mental health, adult day
health, adult dav care, home health, home care, or hospice agency;
county coroner or medical examiner; Christian Science practitioner;
or health care provider subject to chapter 18.130 RCW.
RCW 74.34.020(11) (emphasis added).
Both employees of Alpha fall within that definition as they are clearly
employees of an agency that provides health care. The act does not limit a reporter
to only those who provide services to a specific patient.
Kim argues that the statute creates an implied statutory cause against
mandatory reporters who violate their reporting duties. 	Alpha argues that even if
the employees are mandated reporters, Binondo was not required to make an
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1/10
immediate report because she did not observe any abuse and Thomas did, in fact,
report the suspected abuse to DSHS almost immediately after learning about it.
Thus, neither breached their duty.
Binondo
Binondo's declaration states:
4. 	In mid-March.[sic] 	I made a nursing visit to one of
Alpha's 	patient's 	at the 	Lakeside Adult 	Family 	Home because
Christine Thomas, RN was off-duty. 	During my visit, at one point I
was in the kitchen with my patient, when we both heard a "thud" in
the adjacent room. 	My patient left the kitchen and entered the
adjacent room where the "thud" had originated. 	I then followed my
patient, and entered the room. 	A caregiver who I knew as "Fannie"
entered the room at about that time. 	The room was a resident's
bedroom, but I did not know the resident's name and I had never
seen her prior to that date, as she was not a patient of Alpha.
5. 	When I entered the room, I saw a small elderly Asian
woman, lying on floor near her bed. Aside from that woman, Fannie,
myself and my patient, there was no one else in the room. 	I told
Fannie that she might need to call 911 	and [the woman] would
probably need further assessment by her nurse. I did not know the
resident's history, or health and mental status because she was not
my patient.
6. 	Fannie told me that the resident "fallsa lot." Fanny [sic]
told me that she would call the owner of Lakeside Adult Family
Home, Ms. Gretchen Dhaliwal, R.N., who lives just across the street
from the home, and report the fall. 	It did not appear to me that the
resident was injured in the un-witnessed fall. 	I did not witness any
abuse of the resident. The resident did not seem to be in distress
once she was placed in bed, and was moving her extremities without
difficulty. 	I knew that Ms. Dhaliwal was the home's primary nurse,
and concluded, based on Fanny's [sic] statement, that Ms. Dhaliwal
would 	perform an 	assessment of the resident's condition. 	As I
departed the home, I saw Fannie dialing the phone.[3]
The declaration further states that on the morning after Bae died, Binondo learned
of Thomas's observations. 	Suspecting the patient might be the same one, she
2 CP at 655-56, 758-59.
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 /11
reported her observations to her supervisor and then to the DSHS hot line on April
1,2009.
Under the statute, Binondo met her mandatory reporting requirement. 	She
did 	not learn of any possible abuse 	until 	she 	became aware of Thomas's
experience the day following 	her observations. 	Without more, no reasonable
person 	would 	assume that Binondo 	had 	an 	obligation 	to report 	her initial
observations to DSHS or law enforcement at the time she observed Bae fallen by
her bed.
Thomas
On March 30, Thomas visited 	her patients at Lakeside. 	Salzburn told
Thomas that Baewas being given morphine and was sedated all the time. Thomas
checked the book listing the patients' drugs and learned that morphine was not a
prescribed drug for Bae.
Thomas was aware that, as a nurse, she was a mandatory reporter. 	Indeed
upon leaving the home, Thomas immediately called DSHS but received a busy
signal. At the next opportunity, one and a half hours later, she called and reported
the possibility of suspected abuse to DSHS:
I work as a visiting nurse for Alpha Nursing in Snohomish and I
worked 	in an AFH [(Adult Family Home)] today, 	Lakeside AFH,
16011 Eastshort Dr., Lynnwood, WA 98037. 	I have a patient there,
Carrie Salsbrun [sic] [(CS)]. She was telling me about thing [sic] she
was concerned about, that she had seen with another resident in the
home, so it wasn't me observing, it was kind ofa second hand report
here.
CS was saying she believed that one of the staff members had
sedated one of the residents and that she observed two purple
morphine tablets sitting in a cup next to her bed. 	The person does
not have an order for morphine and she said the resident was totally
sedated, she wasn'table to wake up and eat all day. 	I think she was
referring to yesterday. 	CS also said she has seen some old med
11
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1/12
sheets of some morphine in the closet. 	CS has a history of drug
abuse. 	She is on narcotic medication so I can't say for sure that
she's a reliable source. 	I thought it was rather concerning. She said
she would call this in.
When I was at the home today, the patient that CS thought was over
medicated was very drowsy. 	She kind of had to be dragged to the
bathroom. 	She wasn't able to walk to the bathroom. 	The caregiver
pulled her to the bathroom, sat her down to wash her and clean her.
Of course, I don't work with the patient so I don't know what was
going on. 	The patient is one of two Korean ladies that live in the
home. 	She's the smallest of the two.
Like I said, CS is the one who reported this to me so she can give
further details. 	The owner of the AFH is Gretchen and she is not in
the home. The caregiver that CS said did this, her name ... it just
slipped my mind. 	She said it was the Asian lady who was working in
the home today.
CALLED THE COMPL 3/30/09:
The Compl did not know the name of the resident effected. 	The
Compl said Carrie Salsbrun [sic] may know but could not pronounce
the name, as it was Korean.'41
That report relayed her observations and the fact that it was based in part
on information provided to her by a patient who she could not say was reliable.
Thus, under the provisions ofthe act, Thomas met her mandatory reporting duty.
Kim contends that although Thomas reported the suspicion of abuse to
DSHS, 	she failed 	to report the abuse to a law enforcement agency. 	RCW
74.34.020(2) defines "abuse" as follows:
"Abuse" 	means 	the willful 	action 	or 	inaction 	that 	inflicts 	injury,
unreasonable 	confinement, 	intimidation, 	or 	punishment 	on 	a
vulnerable adult. 	In instances of abuse of a vulnerable adult who is
unable to express or demonstrate physical harm, pain, or mental
anguish, the abuse is presumed to cause physical harm, pain, or
mental 	anguish. 	Abuse 	includes 	sexual abuse, 	mental 	abuse,
3 CP at 999.
12
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1/13
physical abuse, and exploitation of a vulnerable adult, which have
the following meanings:
(b) "Physical abuse" means the willful action of inflicting bodily
injury or physical mistreatment. 	Physical abuse includes, but is not
limited to, striking with or without an 	object, 	slapping, 	pinching,
choking, kicking, shoving, prodding, or the use of chemical restraints
or 	physical 	restraints 	unless 	the 	restraints 	are 	consistent 	with
licensing requirements, and includes restraints that are otherwise
being used inappropriately.
RCW 74.34.035(1) provides that "[w]hen there is reasonable cause to
believe that abandonment, abuse, financial exploitation, or neglect of a vulnerable
adult 	has 	occurred, 	mandated 	reporters 	shall 	immediately 	report 	to 	the
department."5
RCW 74.34.035(3) provides that 'Twlhen there is reason to suspect that
physical assault has occurred or there is reasonable cause to believe that an act
has 	caused 	fear 	of 	imminent 	harm," 	mandated 	reporters 	are 	required 	to
immediately report to DSHS and to the appropriate law enforcement agency.6
RCW 74.34.035(3) 	imposes an additional 	requirement to report to law
enforcement. 	In analyzing whether Thomas had a "reason to suspect" a "physical
assault" had occurred, it is helpful to compare the language of subsection (1) with
subsection (3). 	A "reason to suspect an assault" mandating a report to law
enforcement must require a higher showing than a mere "reasonable cause to
5 (Emphasis added.) Although this statute does not define the term "reasonable cause to
believe," that term was recently defined by the legislature in 2013 in chapter 26.44 RCW,
a statute dealing with child abuse and neglect. 	"'Reasonable cause'" means a person
witnesses or receives a credible written or oral report alleging abuse, including sexual
contact, or neglect of a child." RCW 26.44.0309(1 )(b)(iii). That definition lends support to
our holding here that Thomas, because her report to DSHS clearly stated that it was based
on information provided to her by a patient whom she did not deem reliable, did not receive
a "credible" oral report alleging abuse.
6 RCW 74.34.035(3)(a), (b) (emphasis added).
13
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70892-9-1 /14
believe" that abuse has occurred. 	The latter does not require a report to law
enforcement while the former does. "When the legislature uses two different terms
in the same statute, courts presume the legislature intends the terms to have
different meanings." 	Denslevv. Dep'tof Ret. Svs.. 162 Wn.2d 210, 219, 173 P.3d
885 (2007).
Thomas did not witness the event later determined to be an assault.7 	She
only had the suspicions expressed by patient Salzbrun. 	Alpha established that
Thomas had insufficient reason to believe that Salzbrun, under the influence of
narcotics, was a reliable witness. Thomas had a relationship with Salzbrun, and
she had concerns about Salzbrun's credibility. 	In her initial report to DSHS,
Thomas's message clearly indicated that she did not think Salzbrun was reliable.
Kim fails to counteract this evidence of unreliability. 	The fact that Bae was
murdered by an overdose of morphine became known after the fact. Thomas did
not witness the caregiver administering any morphine, or any other medication for
that matter.
Thomas observed a nonambulatory patient being taken to the bathroom to
be cleaned. This is characterized as being "dragged" to the bathroom.8 Thomas's
deposition clearly showed that she observed Bae as having a decreased level of
consciousness, which is consistent with several health factors. 	She only notified
DSHS of a potential problem. 	In fact, DSHS assessed the report as not needing
review for 10 days.
7 RCW 74.34.035(5) provides that when there is "reason to suspect" that the death of a
vulnerable adult was caused by abuse or neglect, mandated reporters shall report the
death to the medical examiner as well as DSHS and law enforcement as expeditiously as
possible.
8 3 CP at 999.
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No. 70892-9-1/15
Salzbrun's declaration in response to the motion for summary judgment
merely states that she told Thomas that Bae was given someone else's morphine
and was "doped up."9 Salzbrun does not state how she knew this or on what basis
she reached that conclusion, other than she saw two blue pills. 	All Thomas knew
was that Salzbrun, a person whom Thomas felt to be less than reliable, declared
that Bae was being given morphine.
Kim presented evidence of bruising being present at the time of the autopsy.
However, 	neither Binondo nor Thomas saw any evidence of such bruising or
injuries. 	Salzbrun testified that there was a knot when Bae fell, but that bruising
developed later. 	But bruises in and of themselves would not have mandated a law
enforcement call. Such bruises could be reasonably explained to be a result of the
fall.
The basis ofthe abuse was asserted by another patient—a patient who was
under narcotics and whose reliability was questioned by both her caregivers.
While the suspicions espoused by the other patient may have raised a concern,
that concern was passed to DSHS when Thomas made her call. 	Taking all the
evidence in favor of Kim, there simply was not enough evidence of a physical
assault to "mandate" Thomas calling law enforcement in these circumstances.10
Voluntary Rescue Doctrine
Finally, Kim argues that Alpha owed a duty of care under the voluntary
rescue doctrine. 	Where the existence of a legal duty is dependent on disputed
9 -| Qp g{ -J24
10 Given our conclusion that no duty was breached under the circumstances of this case,
we do not reach the issue of whether a breach of a mandatory duty to report under chapter
74.34 RCW would give rise to an implied cause of action.
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No. 70892-9-1/16
material facts, summary judgment is inappropriate. 	Shizuko Mita v. Guardsmark,
LLC. 182 Wn. App. 76, 83, 328 P.3d 962 (2014). 	Under this doctrine, a person
owes a duty to one that he or she knows is in need if "(1) the actor voluntarily
promises to aid or warn the person in need and (2) the person in need reasonably
relies on the promise or a third person who reasonably relies on the promise."
Shizuko Mita. 182 Wn. App. at 85.
The person in need may reasonably rely on the promise if it
induces him or her to "refrain from seeking help elsewhere." Folsom
[v. Burger King], 135 Wn.2d [658,] 676, [958 P.2d 301 (1998)]; Brown
fv. MacPherson's. Inc.], 86 Wn.2d [293,] 300, [545 P.2d 13 (1975)].
The person in need may reasonably rely on the third person if "privity
of reliance" exists between them. 	Osborn fv. Mason County], 157
Wn.2d [18,] 26, [134 P.3d 197 (2006)]. The third person, in turn, may
reasonably rely on the promise if it induces him or her to "refrain[ ]
from 	acting on . . . behalf of the person in 	need. 	Chambers-
Castanes fv. King County]. 100 Wn.2d [275,] 285 n.3, [669 P.2d 451
(1983)]; accord Brown. 86 Wn.2d at 299-300. 	"[Either] person may
reasonably 	rely on explicit or implicit assurances." Osborn. 	157
Wn.2d at 26; Brown, 86 Wn.2d at 301.
Shizuko Mita. 182 Wn. App. at 85 (some alterations in original). 	Kim argues that
Salzbrun took no action because she relied on both Binondo and Thomas to take
care of the problem. Salzbrun's declaration states:
I thought [Binondo] was going to get help, but none arrived
... I thought Nurse Thomas would leave and call for help, but no
help arrived.1111
Salzbrun's declaration does not assert that either nurse promised to make a call;
rather, she states that she "thought" either one of them would do something. This
is insufficient to create a duty under the rescue doctrine.
11 1 CPat124.
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No. 70892-9-1/17
CONCLUSION
We hold that Thomas was properly and timely served in accordance with
the superior court's civil rules, Norway's rules on service of process, and the Hague
Convention. 	Binondo had no duty to report to either DSHS or law enforcement.
Likewise, under the circumstances present here, Thomas did not have a duty to
report to law enforcement. We affirm the trial court's summaryjudgmentdismissal.
Neither party is entitled to attorney fees.
jr*ok*Y 	>^
WE CONCUR:
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